Criminal Process in the Dual Penal State

Abstract

This chapter uses comparative-historical analysis to discuss criminal process in the context of penal power in the modern liberal state as penal law and penal police—the dual penal state. Focusing on Germany and the United States, it considers two ways of thinking about criminal process, from parallel perspectives that correspond to two modes of state governance: law and police. The first is characteristic of the law state (Rechtsstaat) and the second, of the police state (Polizeistaat). The emphasis is on the criminal process that is consistent with the pursuit of the ideal of liberal law to which states that regard themselves—or wish to be regarded by others—as participants in the modern liberal legal-political project are committed.